93 Decision Citation: BVA 93-11985
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO.: 90-50 753 ) DATE:
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ISSUE
Entitlement to service connection for epilepsy.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1951 to November
1952. This matter came to the Board of Veterans' Appeals
(Board) on appeal from a February 1990 decision from the
Nashville, Tennessee, Regional Office (RO). The notice of
disagreement was received in April 1990. The statement of the
case was issued and the substantive appeal was received in May
1990. In June 1990, the RO confirmed the prior decision, and a
supplemental statement of the case was issued in July 1990. In
September 1990, the veteran appeared at a personal hearing, and
gave testimony in support of his claim. In October 1990, the
hearing officer confirmed the prior decision. In November 1990,
the RO again confirmed the prior decision. The case was
docketed at the Board in December 1990. The veteran is
represented in this appeal by the Military Order of the Purple
Heart, and a representative from that organization submitted a
written presentation in April 1991. In June 1991, the Board
denied the veteran's claim. The veteran appealed to the United
States Court of Veterans Appeals and the case was remanded to
the Board for additional development.
REMAND
The veteran seeks service connection for epilepsy, which he
argues was incurred in service. It has been documented by the
National Personnel Records Center in St. Louis, Missouri that
the veteran's service medical records were presumably destroyed
in a fire. No clinical reports were found. The available
medical records show various dates given by way of history for
the onset of the veterans symptoms, and the earliest clinical
evidence of treatment is dated in 1956. The United States Court
of Veterans Appeals has held that when the veteran's service
medical records are lost or destroyed, the Department of
Veterans Affairs has a duty to advise the veteran of alternative
methods to assist him in supporting his claim. Garlejo v.
Derwinski, 2 Vet. App. 619 (1992), Dixon v. Derwinski, 3 Vet.
App. 261 (1992). The record shows that the veteran was not so
informed. In view of the foregoing, the case is hereby REMANDED
to the RO for the following development:
The RO should inform the veteran of
alternate or collateral sources of
evidence that he may submit in support
of his claim. Sufficient time should be
allowed for the veteran and his
representative to provide any additional
evidence for consideration.
Thereafter, the RO should review any evidence submitted and take
any additional steps necessary. The case should then be
returned to the Board for appellate disposition if necessary.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
ANTHONY FAVA CHARLES E. EDWARDS, M.D.
*
(MEMBER TEMPORARILY ABSENT)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of the
Board, to proceed with the transaction of business without
awaiting assignment of an additional member to the Section when
the Section is composed of fewer than three Members due to
absence of a Member, vacancy on the Board or inability of the
Member assigned to the Section to serve on the panel. The
Chairman has directed that the Section proceed with the
transaction of business, including the issuance of decisions,
without awaiting the assignment of a third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.